EB-1 OR and EAD

[honkman]

I am asking this question for a friend of mine and would like to have some clearifications:

He just files EB-1 OR and he will soon apply for his second 3-year term of his H-1B. His attorney said that he will soon also apply for EAD just to have it in hand in case something happened with the job.

=> 1. Question: Is it correct that applying for EAD and having it in hand doesn't automatically start EAD ? So is it possible to work still on H-1B and have an EAD at hand (which is not started yet) as a security ?

The attorney also brought up the idea of using EAD directly instead of starting the second 3-year therm of H-1B. My friend doesn't like the idea at all.

=> 2. Question: Is it correct that once you work with EAD you can't go back to H-1B ? And EAD is only valid for 2 years and when you don't have the green card at that point you are in serious trouble since it is not possible as with H-1B to get 7th year extension etc.

Thanks a lot for answering this question. It will be a great help !

 

[tony403]

I am asking this question for a friend of mine and would like to have some clearifications:

He just files EB-1 OR and he will soon apply for his second 3-year term of his H-1B. His attorney said that he will soon also apply for EAD just to have it in hand in case something happened with the job.

=> 1. Question: Is it correct that applying for EAD and having it in hand doesn't automatically start EAD ? So is it possible to work still on H-1B and have an EAD at hand (which is not started yet) as a security ?

The attorney also brought up the idea of using EAD directly instead of starting the second 3-year therm of H-1B. My friend doesn't like the idea at all.

=> 2. Question: Is it correct that once you work with EAD you can't go back to H-1B ? And EAD is only valid for 2 years and when you don't have the green card at that point you are in serious trouble since it is not possible as with H-1B to get 7th year extension etc.

Thanks a lot for answering this question. It will be a great help !

1. I do not think that having an EAD automatically voids H1B. The EAD must be "activated", but I do not know what this exactly means. Given these uncertain times, I vote with your friend to stick with H1-B until the greec card comes through. If the petition is denied while on EAD, you will be automatically out of status. This is not the case if you have H1-B.
Having said this, I don't see how EAD gives any job security. EB-1OR is tied to a specific employer, and if you lose your job and the employer yanks the I-140, again you are out of status. I the employer does not yank your petition, you may still be out of status in the eyes of USCIS since you do not work for the old employer. You could claim AC-21, but that is not a given....While on H1-B, you have some time to lok for a new job if laid off.

2. I think you can get back on H1-B from EAD as long as your petition is not denied when the H1-B is approved. However, you are again subject to the "cap", and there might not be an H1-B to desperately switch to.

I would stick with H1-B for as long as possible. After that, try O-1. Of course, if you qualify for this, EB-1EA should be possible too. Maintain status that is independent of an employer dependent green card petition.

 

[billliu]

1. I do not think that having an EAD automatically voids H1B. The EAD must be "activated", but I do not know what this exactly means. Given these uncertain times, I vote with your friend to stick with H1-B until the greec card comes through. If the petition is denied while on EAD, you will be automatically out of status. This is not the case if you have H1-B.
Having said this, I don't see how EAD gives any job security. EB-1OR is tied to a specific employer, and if you lose your job and the employer yanks the I-140, again you are out of status. I the employer does not yank your petition, you may still be out of status in the eyes of USCIS since you do not work for the old employer. You could claim AC-21, but that is not a given....While on H1-B, you have some time to lok for a new job if laid off.

2. I think you can get back on H1-B from EAD as long as your petition is not denied when the H1-B is approved. However, you are again subject to the "cap", and there might not be an H1-B to desperately switch to.

I would stick with H1-B for as long as possible. After that, try O-1. Of course, if you qualify for this, EB-1EA should be possible too. Maintain status that is independent of an employer dependent green card petition.

I have a question to tony403. If I use advance porale (AP) to travel overseas, does that mean that my current H-1B will be no longer valid when I return with AP. That means I have to use a EAD to continue to work? Thanks.

 

[lamonte]

=> 1. Question: Is it correct that applying for EAD and having it in hand doesn't automatically start EAD ? So is it possible to work still on H-1B and have an EAD at hand (which is not started yet) as a security ?

That's correct. You can sit on EAD until it expires and nothing will happen to your status.

The attorney also brought up the idea of using EAD directly instead of starting the second 3-year therm of H-1B. My friend doesn't like the idea at all.

Neither would I. OR's are iffy and if he's denied he will land in very unpleasant situation, since H1-B are hard to come by nowadays

=> 2. Question: Is it correct that once you work with EAD you can't go back to H-1B ? And EAD is only valid for 2 years and when you don't have the green card at that point you are in serious trouble since it is not possible as with H-1B to get 7th year extension etc.

I've never heard anything of this sort. EAD is valid for one year and you can get new ones indefinitely or however long it takes them to adjudicate the case.

 

[memsg]

I have a question to tony403. If I use advance porale (AP) to travel overseas, does that mean that my current H-1B will be no longer valid when I return with AP. That means I have to use a EAD to continue to work? Thanks.

I was going to be in the same situation and checked with my HR. It seems that H1B is the ONLY VISA which allows you to use AP to reenter. When you re-enter DO NOT show EAD to immigration officer. Show your approved H1B VISA (approval notice + attached I-94) at the port of entry. If you use EAD to enter, you will instantly VOID your H1B and your employer will have to file an I-9 document to 'activate' the EAD (to use another poster's terminology).

You can use H1B to continue to work till its validity date. It is also safer to use H1B to safeguard against a denial of your GC petition/application. This H1B can be extended later without being subject to a new cap. If you however, receive a denial on your GC petition while on EAD and try to do a superfast H1B via premium processing your fate will depend upon the cap not being filled.

If you are with an institution of higher learning or a non-profit orgarnization or with a national lab, you are not subject to the cap but why take the risk unless you really have to? Also, if you check the USCIS website, they say that an H1B can be used upto 10 years if working for DEFENSE DEPARTMENT projects.

(To play safe, check all this with an attorney - $50 in telephone consulation fees is peanuts compared to the consequences).

Good luck.

memsg

 

[getfuture]

I was going to be in the same situation and checked with my HR. It seems that H1B is the ONLY VISA which allows you to use AP to reenter. When you re-enter DO NOT show EAD to immigration officer. Show your approved H1B VISA (approval notice + attached I-94) at the port of entry. If you use EAD to enter, you will instantly VOID your H1B and your employer will have to file an I-9 document to 'activate' the EAD (to use another poster's terminology).

You can use H1B to continue to work till its validity date. It is also safer to use H1B to safeguard against a denial of your GC petition/application. This H1B can be extended later without being subject to a new cap. If you however, receive a denial on your GC petition while on EAD and try to do a superfast H1B via premium processing your fate will depend upon the cap not being filled.

If you are with an institution of higher learning or a non-profit orgarnization or with a national lab, you are not subject to the cap but why take the risk unless you really have to? Also, if you check the USCIS website, they say that an H1B can be used upto 10 years if working for DEFENSE DEPARTMENT projects.

(To play safe, check all this with an attorney - $50 in telephone consulation fees is peanuts compared to the consequences).

Good luck.

memsg

When one re-enter to USA (except from Canada and Mexico), you must show your visa or AP. EAD is only a work permit. If you do NOT want to show AP, you must show visa stamp issued from oversea embassy. approval notice + attached I-94 of your current H1B (i.e. you have it before you left USA) is not a proof to let you come back.

 

[billliu]

I was going to be in the same situation and checked with my HR. It seems that H1B is the ONLY VISA which allows you to use AP to reenter. When you re-enter DO NOT show EAD to immigration officer. Show your approved H1B VISA (approval notice + attached I-94) at the port of entry. If you use EAD to enter, you will instantly VOID your H1B and your employer will have to file an I-9 document to 'activate' the EAD (to use another poster's terminology).

You can use H1B to continue to work till its validity date. It is also safer to use H1B to safeguard against a denial of your GC petition/application. This H1B can be extended later without being subject to a new cap. If you however, receive a denial on your GC petition while on EAD and try to do a superfast H1B via premium processing your fate will depend upon the cap not being filled.

If you are with an institution of higher learning or a non-profit orgarnization or with a national lab, you are not subject to the cap but why take the risk unless you really have to? Also, if you check the USCIS website, they say that an H1B can be used upto 10 years if working for DEFENSE DEPARTMENT projects.

(To play safe, check all this with an attorney - $50 in telephone consulation fees is peanuts compared to the consequences).

Good luck.

memsg

Thanks for your comment, Memsg.

 

[memsg]

When one re-enter to USA (except from Canada and Mexico), you must show your visa or AP. EAD is only a work permit. If you do NOT want to show AP, you must show visa stamp issued from oversea embassy. approval notice + attached I-94 of your current H1B (i.e. you have it before you left USA) is not a proof to let you come back.

Sorry, but you have misunderstood my response. The poster clearly has a valid H1B which means he is authorized to work in the US. Now comes the question of entry. He wants to know if he can use his Advance Parole Document (which allows entry in lieu of an H1B VISA stamp in the passport according to my HR) to re-enter.

The least complicated way out of this of course, is to apply for an H1B-based VISA stamp in the passport at a US consulate (usually in the home country).

memsg